Garrity v. Mangan

• Decision Date: 24 November 1942
• Docket Number: 46026.
• Parties: GARRITY v. MANGAN.
• Court: Iowa Supreme Court

6 N.W.2d 292

232 Iowa 1188

GARRITY v. MANGAN.

No. 46026.

Supreme Court of Iowa

November 24, 1942

Rehearing Denied Feb. 12, 1943.

Bollinger & Donegan, of Davenport, and E. C. Halbach, of Clinton for appellant.

Putnam Putnam, Fillmore & Putnam, of Des Moines, and R. J Lynch, of De Witt, for appellee.

HALE Justice.

This is an action by Joseph E. Garrity, administrator of the estate of John J. Garrity, deceased, against Gertrude M. Mangan, administratrix of the estate of Arthur Mangan, deceased, for damages arising from the death of John J. Garrity in an automobile accident. The appeal is by plaintiff from the action of the court in sustaining motion for directed verdict for the defendant. Plaintiff's petition was in two counts. Count I alleges that defendant's decedent, Arthur Mangan, drove his car from the highway and into a culvert, that the death of plaintiff's decedent and damages to his estate were caused as a result of defendant's decedent being under the influence of intoxicating liquor, and that no act or conduct on the part of plaintiff's intestate in any way caused or contributed thereto. Count II alleges that at the time defendant's decedent drove said automobile he was under the influence of intoxicating liquor, that in so operating said automobile he was guilty of negligence, that the damage to the estate of plaintiff's decedent was caused as the result of said Arthur Mangan being under the influence of intoxicating liquor and as a result of the negligence of the said Arthur Mangan in so operating said automobile when under the influence of intoxicating liquor, and further pleads freedom from contributory negligence. Defendant's answer pleads, first, a general denial, and after admission that plaintiff was administrator of the estate of John J. Garrity, deceased, specifically denies that the intoxication of defendant's decedent resulted in negligence which was a proximate cause of the accident, and alleges that plaintiff's decedent was under the influence of intoxicating liquor and guilty of contributory negligence. Count II of said answer, in answer to Counts I and II of the petition, alleges that if defendant's decedent was under the influence of intoxicating liquor, the plaintiff's decedent had knowledge, or in the exercise of ordinary care should have had knowledge, and assumed all risk.

Plaintiff's decedent, John J. Garrity, 65 years of age, and defendant's decedent, Arthur Mangan, 39, were neighboring farmers. On the evening of May 2, 1939 Garrity left his home to return a borrowed horse to Mangan. They apparently started to DeWitt together in Mangan's automobile and were first seen about 6:30 or 7 o'clock that evening at a store which sold beer, called the Robin's Nest, on the Lincoln Highway about five miles east of DeWitt, where beer was served to Mangan but not to Garrity. They were again at the Robin's Nest later on that evening about 11 or 11:30, when the proprietor, Knabe, served them each one bottle of beer. According to the testimony Mangan drank all of his and Garrity drank about half of his bottle. About 9 o'clock they were seen at a tavern called J. and J.'s in DeWitt. About 10 o'clock that evening they were at Keiner's Tavern in DeWitt, where Mangan ordered two bottles of beer, and when they left, Mangan's bottle was empty and Garrity's was partially empty. About 10:30 or 11 they came back to J. and J.'s tavern. Gribbon, the proprietor, stated that he delivered beer to both of the men in bottles, he thought, and they both drank part of the beer, but he was unable to state that either one drank all of his. At that time Mangan was talking loudly. When they came back to the Robin's Nest on their return from DeWitt, after being served with beer, Mangan asked for another and the proprietor refused. According to the testimony Mangan was talking loudly, and in the opinion of the witness, Tague, was under the influence of intoxicating liquor. They then left the Robin's Nest and afterwards Tague, with his companion, Anderson, and two girls who were with them, also got into their car, and driving east, found Mangan's car about a mile east of the Robin's Nest on the Lincoln Highway. The Mangan car was off the highway and shoulder and down by the culvert on the south side of the bridge over the east and west road, which road was straight and level. When the Tague car reached the scene of the accident Garrity and Mangan had already been taken to DeWitt by some passing truckers to the office of Dr. Snyder.

Garrity never fully regained consciousness. According to the doctor's testimony a quantity of whiskey and intoxicating liquor was found in the stomach content of each of the men. Both men died as a result of the accident. The tracks of Mangan's car were traced from the culvert back up to the south edge of the pavement 40 or 50 feet. The tracks went gradually into the ditch. There was one flat tire and the windshield was broken. Garrity had never owned an automobile and never drove one or tried to learn to drive. He was not an habitual user of liquor.

At the conclusion of plaintiff's testimony defendant moved for directed verdict by motion in two separate divisions of eight grounds each applicable to Counts I and II of plaintiff's petition. It is from the sustaining of this motion that the plaintiff appeals.

Appellant assigns a number of errors by the court in sustaining the motion to direct a verdict. There are argued in the briefs of both appellant and appellee various matters which are not...